United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON.
For the Respondent	MR A GEORGE (of Counsel) Instructed by: Litigation Department BBC White City 201 Wood Lane London W12 7TS


 


JUDGE COLLINS:

1. This is an appeal against the decision of an employment tribunal sitting at London (North) whose extended reasons were promulgated on 26 April 1999. The tribunal held that the appellant's claim that he had been discriminated against on racial grounds was out of time and that it was not just and equitable to extend the time for presenting his complaint.
2. The brief facts are that Mr Tyagi was employed by the BBC and applied for a job as producer in the Hindi section of the World Service. He was interviewed for that post on 18 April 1997 and turned down, as he was informed on the day. His explanation is first, that there was personal prejudice against him and second, that there was a racially discriminatory policy at the BBC, which meant, inevitably, that he would be rejected.
3. The application was presented to the tribunal on 16 July 1998 and was accordingly a year over the three month time limit provided by statute.. The proceedings were concerned with the preliminary issue as to jurisdiction; the substantive complaint has never been adjudicated upon. Subsequent to the interview in question the appellant was dismissed from the post which he held at the BBC and made an application to the tribunal on the basis of unfair dismissal. We have ascertained today that the unfair dismissal proceedings were compromised by an agreement dated 23 February 1998 but which was not finally executed, by which we understand the necessary monies paid, until 20 March 1998. It was on 24 March, four days after the execution of the compromise agreement that the appellant wrote to the BBC complaining about the discriminatory conduct associated with the interview of 18 April 1997.
4. As the tribunal pointed out in paragraph 6 of their reasons this had been mentioned at the feedback from the interview in April 1997 but was not reduced in writing until the letter of 24 March 1998. On 1 July 1998 the BBC wrote back denying that the selection board was prejudiced and setting out the reasons why the appellant was not thought to have the strengths required for the job which had been on offer. As we have indicated, after receipt of that letter the present application was commenced.
5. This appeal came on for a preliminary hearing before this tribunal on 27 September. It was allowed to go forward on two grounds which had been summarised in the Notice of Appeal in this way:

The Tribunal has also erred in dismissing the argument about the continuing discrimination in the policies operated by the Respondents and

The Tribunal has clearly erred in coming to the judgment that if the time limit were to be extended, prejudice to be suffered by the Respondents was far greater than that to be suffered by the applicant because of the present judgment.

6. We shall deal with these two matters separately. The argument addressed to us by Mr Tyagi, who has appeared in person and has argued his case with courtesy and skill, is that since the policy of the BBC was a discriminatory one and had been for several years, it continued to be discriminatory against him, even though he had not made an application for employment since 18 April 1997. Since the policy meant that any application he made would ultimately be turned down on racial grounds he contended that it was a continuous act of discrimination.
7. We ought briefly to refer to the relevant statutory provisions. By s.4 Race Relations Act 1976 it is provided, so far as is material, that

''It is unlawful for a person in relation to employment by him at an establishment in Great Britain to discriminate against another-

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(c) by refusing or deliberately admitting to offer him that employment. ''

S.1 provides that

''A person discriminates against another in any circumstances relevant for the purposes of any provision of this act, if-

(a) on racial grounds he treats that other less favourably than he treats, or would treat other persons''

and we refer to S.68 (1) which provides that:

''An employment tribunal shall not consider a complaint ... unless it is presented to the tribunal before the end of

(a) the period of three months, beginning when the act complained of was done."

68 (7) :

" ... any act extending over a period shall be treated as done at the end of that period."

and 68(6) :

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so."

8. The first question is whether or not Mr Tyagi's complaint was in fact out of time as the tribunal held or whether it was an act extending over a period and which should be treated as done at the end of that period, which would mean on the basis of Mr Tyagi's submissions that time is still running. Mr Tyagi relied heavily on the decision of the Court of Appeal in Cast v Croydon College [1998] IRLR p318. In that case, the employee was an information centre manager employed by Croydon College and in March 1992 was refused permission to job share or work on a part time basis. She resigned on 7 June 1993 and the employment tribunal upheld by this Appeal Tribunal held that any relevant act of discrimination occurred on 26 March 1992, when her request was refused and that what occurred after that was simply a repetition and not a continuing act. The Court of Appeal disagreed. The only judgment was delivered by Auld L.J. In the course of his judgment he referred to a number of authorities, in particular the decision of this tribunal in Owuso v London Fire and Civil Defence Authority [1995] IRLR 574 and of the Court of Appeal in Rovenska v General Medical Council [1997] IRLR 367 where it was emphasised that, to use of the words of Mummery J in the Owuso case:

''In our view the allegations amounted to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied excluded Mr Owuso from regrading or opportunities to act up.''

and in the Rovenska case Brooke LJ acknowledged that:

"A complaint of discrimination in the field of employment may establish jurisdiction by relying simply on the existence of a policy as a continuing act of discrimination, regardless of its most recent application to him."

9. Mr Tyagi has seized upon those passages in an attempt to extract a general proposition that wherever there is a discriminatory policy, any person who might be affected by that policy is discriminated against for as long as the policy exists. Closer examination of those authorities shows that they do not lend support to this argument. In Auld LJ's judgment he refers at paragraph 27 to a decision of Bristow J. in this tribunal in Amiss v Inner London Education Authority [1977] ICR 308 where he says: -

"So, if the employers operated a rule that the position of Head of Department was open to men only, for so long as the rule was in operation there would be a continuing discrimination and anyone considering herself to be have been discriminated against because of the rule, would have three months from the time when the rule was aggravated within which to bring the complaint."

Auld LJ's comment on that decision is: -

"Although Bristow J concluded that passage by referring to a limitation period of three months from the aggregation of the policy, I do not think that he was suggesting that a complaint could rely on the continuance of a policy long after she had left her employment. In the case of such a policy still in existence of that date, time runs from then."

9. That is certainly how Browne-Wilkinson J. regarded the matter in the following passage from his judgment in this appeal tribunal in Calder v James Finlay Corporation [1989] IRLR 55 and I will cite one passage from those which Auld LJ cited: -

"The rule of the scheme constituted a discriminatory act extending over the period of her employment and is therefore to be treated as having have been done at the end of her employment."

10. We think that the answer to Mr Tyagi's submission lies in those passages and also in the very section which he asked us to look at during the course of his submissions, namely S.4 of the Act which provides:

"It is unlawful for a person in the case of a person employed by him at an establishment in Great Britain to discriminate against that employee. .... ''

then a number of factual situations are set out. It is easy to see in the case of an employee that an employer's policy may have a continuing discriminatory effect. In the case of someone who is not an employee and has to rely on s.4(1), the case for racial discrimination has to depend upon the arrangements which are made for the purpose of determining who should have employment, the terms on which that employment is offered or a refusal or omission to offer that employment. These are not continuing acts. These are one-off acts and therefore the line of authority which Mr Tyagi asks to follow simply has no application. It might have been different, although we express no concluded opinion on the point, if Mr Tyagi had continued to be an employee of the BBC throughout the relevant period because in that case, Mr Tyagi might have been able to rely on S.4(2)(b) discrimination in the way the employer afforded him access to opportunities for promotion, transfer or training, but that is not the case with which we are concerned today. So that in our judgment the first ground of appeal fails.

11. The second ground of appeal relates to the tribunal's decision that it was not just and equitable to allow the application to proceed and in particular to their findings that there would be greater prejudice to the BBC by allowing it than to the applicant if it were not allowed to proceed.
12. As Mr George concedes in his helpful submissions, the tribunal does not specifically identify those elements which would be prejudicial to the BBC. We accept of course, that as a matter of general principle there will always be prejudice in some degree to someone who has to deal with a complaint late. It is in the nature of things, that as memory fades and persons become involved in dealing with many other matters, they will become less able to deal as effectively with matters of complaint. But in this case, on 1 July 1998 a perfectly coherent and well supported letter was sent to Mr Tyagi explaining why he did not get the job on 18 April 1997 and although there has been a reference today to an employee, Mr McNeill, chairman of the appointing board not being employed by BBC any longer, we know not one way or the other, whether he is available to give evidence.
13. So that we find it difficult to deal with the question of prejudice on the basis of the material that we have except to the limited extent that I have already indicated is inherent in any period of delay. That however, does not conclude the question. The requirement is for the tribunal to consider that it is just and equitable to proceed. We are aware of authorities, which have not been cited to us, to the effect that the discretion of the tribunal is no narrower than the discretion of the court to permit a personal injuries action to proceed under the provisions of s.33 Limitation Act 1980. It is obviously of great importance to consider whether or not the application can be fairly tried. In this case for the reasons which we have already given, we accept that it would be possible, although with some limitation of the BBC's ability to present their case, for their case to be tried reasonably fairly. However, there are other factors in this case to which in our judgment, great weight must be paid. The reasons given by the appellant for not pursuing his claim earlier were first, that it was pointless to bring a claim until the question of his dismissal from the more junior position had been resolved, second, that he had devoted all his energy to protecting his lost job and had no energy left for dealing with the lost opportunity for a new job, third, he maintained that it was not a deliberate choice not to bring his claim earlier.
14. We found it difficult to accept those arguments. The appellant waited until he had got his money from the BBC and then immediately complained about the 1997 interview. He was always aware that he had a claim in relation to the 1997 interview because he picked the point up in his feedback after it. It seems to us that the tribunal were entirely justified in taking the view that he made a deliberate decision not to pursue a claim of which he was well aware, at a time when he was actively pursuing another claim which had arisen later in point of time. Mr Tyagi, if he will allow us to say so, is obviously a person of energy and ability. The idea that he was unable to bring two claims at the same time because he could not cope is not one which we were prepared to accept. The points which the tribunal, namely that it was clear that the complaint was presented out of time and that he was in receipt of some expert advice, whether it was legal or not and could have dealt with them both at the same time, are points to which the tribunal was entitled to give decisive weight. They said:

"This is not a case where he merely overlooked the idea of bringing a complaint. He had deliberately chosen not to bring the claim in time."

15. It seems to us that is an inevitable conclusion from the facts of this case and notwithstanding the fact that the case could be tried in our judgment without undue unfairness to the BBC, we consider that the appellant's deliberate choice in not pursuing a claim of which he was well aware is one in respect of which he must live with the consequences. We do not think that the decision of the tribunal was perverse or unreasonable or wrong in law. This appeal will be dismissed.